Insurance Defense Litigation

Claimant filed a Petition alleging that on 10/15/18 he was working on a line, slipped and fell on chicken, fracturing his ankle in three places, was totally disabled for several months, and needed ankle surgery to address a non-union. Employer challenged whether any accident occurred.

Claimant provided rather interesting testimony at Hearing. He said he had never hurt or even had pain in his ankle before he fell at work. Claimant offered testimony from his two adult children who confirmed that their father had never hurt his foot or ankle before the alleged work incident. Claimant also rather vividly described the events of 10/15/18. He said he was working “elbow-to-elbow” on a line, hanging chickens. This work required him to be on his feet all day. He moved his foot accidentally onto a piece of chicken on the floor. He slipped and fell onto his buttocks. This particular line was a very wet area of the plant. Landing on the ground soaked his pants, like he had taken a shower. He was immediately unable to walk. He was rolled to the Nurse’s Office on a wheelchair. He wanted to go to the hospital, but the Nurse refused to call an ambulance.

The Board found the claimant not credible, and that no accident had occurred. Claimant had only worked for Employer for 4 weeks at the time of the fall. He did not have health insurance. Both medical experts agreed that the diagnostic testing showed that claimant did have a prior ankle fracture and it would have been very painful and swollen when it occurred. The Board found that it was “unbelievable” that no witness would confirm the fall occurred, on a line where workers were in such close quarters. Multiple witnesses testified that Claimant was not wet immediately after the alleged incident. Claimant’s supervisor testified that Claimant was not wheeled to the Nurses Office. He walked. The Nurse testified that she offered to call an ambulance and the Claimant refused.

The Board also accepted the testimony of Employer’s medical expert over Claimant’s medical expert. Claimant’s medical expert argued that while the fracture in the lateral portion of the ankle was old, a medial fracture was new. He claimed there was “no evidence” the medial fracture was old. The Board noted that Claimant’s expert had ignored “resorptive changes” in the medial portion of the ankle shown on imaging taken in the hospital the night of the alleged incident, that were noted not only by Employer’s expert but also physicians in the Emergency Room who questioned whether the fracture was new. Resorptive changes of this nature are typically not present for at least 6-8 weeks following a fracture.

Should you have any questions concerning this Decision, please contact Greg Skolnik, or any other attorney in our Workers’ Compensation Department.

Vladimir Thomas v. Mountaire Farms, IAB #1478590 (Jan. 24, 2020).

EMPLOYMENT LAW

Plaintiff’s Swing at Unemployment Benefits Fails

Plaintiff was employed by Defendant from January 2014 until his termination on March 5, 2019. On February 15, 2019, Plaintiff was involved in a physical fight with another employee which led to a response by police and Plaintiff’s arrest. Subsequently, Defendant placed Plaintiff on suspension and began an investigation of the incident. Defendant found that the Plaintiff violated the Violence- Free Workplace policy and the Plaintiff was terminated on March 5, 2019.

Plaintiff filed for unemployment benefits and the Claims Deputy found that the Plaintiff was terminated for just cause and did not qualify for benefits. The Plaintiff appealed to the Appeals Referee, where evidence of the Defendant’s policy was presented, along with the Plaintiff’s acknowledgement of that policy.

The Appeals Referee reversed the Claims Deputy’s decision finding that the Plaintiff’s involvement in the fight constituted misconduct and the Defendant failed to provide evidence showing that the Plaintiff initiated the fight. The Defendant appealed the decision to the Unemployment Insurance Appeal Board, who revered the Appeals Referee decision and found there was sufficient evidence to show just cause for the Plaintiff’s immediate termination. Plaintiff appealed to the Superior Court.

The Court reviews the Board Decision for abuse of discretion, looking to whether the Board’s findings and conclusions are free from legal error and supported by substantial evidence on the record. Substantial evidence is relevant evidence that a reasonable person can accept as adequate to support a conclusion.

The Court affirmed the Board’s decision concluding that it was supported by substantial evidence, which included the Defendant’s policy, Plaintiff’s acknowledgement of that policy and evidence that the Plaintiff was involved in a fight with another employee on the Defendant’s property. Further, the Court found the Board’s decision was free from legal error.

Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.

LITIGATION CASE LAW

CIVIL IMMUNITY’S A BEACH TO PLAINTIFF; SHORE WIN FOR DEFENDANTS

Plaintiff was enjoying a beautiful day at a beach located in a State Park. Unfortunately, the day was cut short after the Plaintiff injured her finger on a bathroom door that was blown shut by the wind. The door was owned by the State of Delaware; the wind, presumably God’s.

Plaintiff filed suit against the Delaware Department of Natural Resources and the Department’s Secretary alleging the Defendants failed to inspect, warn, and maintain the bathroom door which did not have a working pneumatic closer to slow its movement.

The Defendants moved for summary judgment arguing that they were afforded sovereign immunity from suit as a state agency and, regarding the claims against the Department’s Secretary, as a state employee sued in an official capacity. Moreover, the Defendants cited the additional immunity provisions contained in the State Torts Claims Act. In opposition, the Plaintiff contended that sovereign immunity applied only to discretionary acts and not to ministerial acts of the State.

In granting the Defendants’ Motion for Summary Judgment, the Court found that whether the conduct at issue was ministerial or discretionary was of no consequence to the State’s sovereign immunity. Such distinction was only relevant under the State Torts Claims Act. Prior to considering the application of the Act, it must first be determined that the State statutorily waived sovereign immunity. In this case, there was no evidence that sovereign immunity was waived by the Defendants and therefore the Plaintiff was afforded no recovery as a matter of law.

For more information on this matter or other legal questions, feel free to contact any attorney in our Liability Department.

Boyer v. Garvin, et al., 2020 Del. Super. LEXIS 68 (Jan. 28, 2020).

ANNOUNCEMENTS

GIVING BACK

Heckler & Frabizzio is proud to give back to our community. Each year we come together to donate to charities in the area including, a coat drive, food drive, and donations to a local animal shelter. This year we also wrote Valentine’s day cards to the children at A.I. DuPont Children’s Hospital to help brighten their day. Thank you to all of the staff at H&F for your generosity!

WOMEN IN THE LAW RETREAT

The Women in the Law section of the Delaware State Bar Association is hosting it’s annual retreat from February 28th to February 29th in Dewey Beach, Delaware. H&F attorneys, Maria Paris Newill, Michele Subers, and Roxanne Eastes will be attending this event. For more information about this event please visit dsba.org.

FAMILY BRAGS

FANTASY FOOTBALL

Gregory Skolnik, Partner, won the 2019-2020 Workers’ Compensation section fantasy football league. He now has bragging rights for the next year. Congratulations, Greg!

LINEMAN SCHOOL

Patrick Rock’s son, Dominic, is currently at Southeast Lineman Training Center in Georgia. Dominic will be completing his lineman coursework and testing in April of 2020. Keep up the great work, Dominic!